Citation NR: 9707589
Decision Date: 03/06/97 Archive Date: 03/13/97
DOCKET NO. 93-23 292 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUE
Entitlement to service connection for the residuals of a
right ankle injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The veteran and D. B.
INTRODUCTION
The veteran had active service from September 1985 to August
1991.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a September 1991 rating decision of
the Seattle, Washington, Department of Veterans Affairs (VA)
Regional Office (RO) which, among other things, denied
service connection for right ankle disorder. This issue was
previously before the Board in January 1996 and was remanded
for additional evidentiary development. The case is now
ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO erred in failing to grant
service connection for the residuals of a right ankle injury.
He argues that his right ankle was injured in service and
that it has residual disability at present.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West
1991 & Supp. 1995), following review and consideration of the
evidence and material of record in the veteran's claims
folder, and for the following reasons and bases, it is the
decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim for
service connection for the residuals of a right ankle injury
is well grounded.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition has been requested or obtained.
2. While the veteran sustained a right ankle sprain during
service, that sprain is shown to have been acute and
transitory and resolved prior to the veteran’s separation
from service and the most recent VA examination reveals that
no clinical residuals exist.
CONCLUSION OF LAW
The veteran’s claim for service connection for the residuals
of a right ankle injury is not well grounded. 38 U.S.C.A..
§§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(a), 5107(a),
7105(d)(5) (West 1991 & Supp. 1995); 38 C.F.R. §§ 3.303,
3.307, 3.309 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Except when otherwise provided by the Secretary in accordance
with the provisions of this title, a person who submits a
claim for benefits under laws administered by the Secretary,
shall have the burden of submitting evidence sufficient to
justify a belief by a fair and impartial individual that the
claim is well grounded. 38 U.S.C.A. § 5107(a). The Court of
Veterans Appeals (Court) has provided that a well-grounded
claim is a plausible claim, one which is meritorious on its
own or capable of substantiation. Such a claim need not be
conclusive, but only possible to satisfy the initial burden
of 38 U.S.C.A. § 5107(a). Gilbert v. Derwinski, 1 Vet.App.
49 (1990); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).
Although the claim need not be conclusive, it must be
accompanied by evidence. The VA benefits system requires
more than just an allegation. a claimant must submit
supporting evidence and the evidence must justify a belief by
a fair and impartial individual that the claim is plausible.
Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Where the issue
presented in an application for service-connected disability
is factual in nature, e.g., whether an incident or injury
occurred in service, competent lay testimony, including a
veteran’s solitary testimony, may constitute sufficient
evidence to establish a well-grounded claim under 38 U.S.C.A.
§ 5107(a). See Cartright v. Derwinski, 2 Vet.App. 24 (1991).
However, where the determinative issue involves medical
causation or a medical diagnosis, competent medical evidence
to the effect that the claim is “plausible” or “possible” is
required. Murphy v. Derwinski, 1 Vet.App. 78 (1990). A
claimant cannot meet the burden imposed by § 5107(a) merely
by presenting lay testimony because laypersons are not
competent to offer such expert medical opinions. Espiritu v.
Derwinski, 2 Vet.App. 492 (1992). Consequently, lay
assertions of medical causation cannot constitute sufficient
evidence to render a claim well grounded under § 5107(a). If
no cognizable evidence is submitted to support the claim, it
is not well grounded. Tirpak v. Derwinski, 2 Vet.App. 609,
611 (1992).
Finally, the Court more recently established what may be
referred to as a three-pronged test in analyzing well-
grounded claims. In Caluza v. Brown, 7 Vet.App. 498 (1995),
the Court held that in order for a veteran’s claim for
service connection to be well grounded, there must be
competent evidence of; (1) Current disability in the form of
a medical diagnosis; (2) incurrence or aggravation of the
disease or injury in service in the form of lay or medical
evidence; and (3) a nexus between inservice injury or disease
and current disability in the form of medical evidence.
(Emphasis added.) Finally, a claim that is not well grounded
does not present a question of fact or law over which the
Board has jurisdiction. 38 U.S.C.A. § 7105(d)(5);
Grottveit v. Brown, 5 Vet.App. 91 (1993).
Service connection may be established for disability
resulting from disease or injury suffered in line of duty.
38 U.S.C.A. §§ 1110, 1131. Service connection may also be
granted for arthritis which becomes manifest to a compensable
degree within one year from the date of separation from
service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R.
§§ 3.307, 3.309. Service connection may be granted for any
disease diagnosed after discharge, when all of the evidence,
including that pertinent to service, establishes the disease
was incurred in service. 38 C.F.R. § 3.303(d).
For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify a disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings. Continuity of symptomatology is
required only where the condition noted during service (or in
the presumptive period) is not, in fact, shown to be chronic
or when the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b).
Finally, when there is an approximate balance of positive and
negative evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 1991 & Supp. 1995).
The veteran’s claim for service connection for the residuals
of a right ankle injury is not well grounded because there is
simply no competent clinical evidence of any current right
ankle disability residual to the right ankle sprain which is
documented to have occurred during service. The service
medical records reveal that in November 1986, the veteran
injured his right ankle playing basketball. While there was
initial suspicion of a chip fracture, subsequent X-ray
studies were interpreted as revealing only mild soft tissue
swelling. No actual fracture of the left ankle has ever been
subsequently corroborated. The later impression from
examination and treatment was a moderately severe right ankle
sprain. The veteran was provided a walking cast and was seen
intermittently thereafter for right ankle symptoms. However,
the physical examination for separation from service in July
1991 noted that the lower extremities were normal. There was
no indication of any residuals of the right ankle sprain
which had earlier occurred. While the veteran indicated that
he had had broken bones in the accompanying report of medical
history, that medical history noted a fractured right ankle
in 1986, but with no sequelae.
There is no clinical evidence from after service
demonstrating any chronicity of right ankle symptomatology.
During a personal hearing at the RO in February 1993, the
veteran testified that he did not really have any problems
with his right ankle and that it was stable. The most recent
April 1996 VA examination of the ankle included evaluation of
the veteran’s claims folder, including analysis of the
initial injury and treatment thereafter. At the time of the
examination, the veteran denied discomfort, swelling or
residuals from his prior ankle sprain. There was full range
of motion and the right ankle palpated without loose bodies
or tenderness evident. Gait was symmetric without ataxic or
antalgic gait and no right ankle disability was identified.
Current X-rays of the ankle were interpreted as showing that
alignment was anatomic with no evidence of fracture or
dislocation and the soft tissues were normal. The final
assessment was right ankle traumatic injury with pain and
swelling for approximately six months following the injury
without evidence of residuals.
There is simply no right ankle disability clinically
demonstrated at present which is attributable to the veteran
‘s right ankle sprain during service. Accordingly, service
connection for residuals of a right ankle injury is not
warranted and the claim for service connection for such
residuals is not well grounded in the complete absence of any
evidence of such residuals. 38 U.S.C.A.. §§ 1101, 1110,
1112, 1113, 1131, 1137, 5107(a), 5107(a), 7105(d)(5);
38 C.F.R. §§ 3.303, 3.307, 3.309.
Although where claims are not well grounded, the VA does not
have a statutory duty to assist the claimant in developing
facts pertinent to the claim, the VA may be obligated under
38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed
to complete the application. This obligation depends upon
the particular facts of the case and the extent to which the
Secretary of the Department of Veterans Affairs has advised
the claimant of the evidence necessary to be submitted with a
VA benefits claim. Robinette v. Brown, 8 Vet.App. 69 (1995).
In this case, the RO fulfilled its obligation under § 5103(a)
in that the statements of the case issued by the RO clearly
informed the veteran that the reason for the denial of his
claim was that service connection for a right ankle disorder
required clinical or other competent evidence demonstrating
present right ankle disability, as well as the other laws and
regulations applicable to an allowance of a claim for service
connection. Furthermore, by this decision, the Board is
informing the veteran of the evidence that is lacking and
which is necessary to make his claim well grounded.
ORDER
Service connection for the residuals of a right ankle injury
is denied.
J. JOHNSTON
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991, amended by Supp. 1995), a decision of the Board of
Veterans' Appeals granting less than the complete benefit, or
benefits, sought on appeal is appealable to the United States
Court of Veterans Appeals within 120 days from the date of
mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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